Such data is not obtained via the traditional process of obtaining a warrant, but rather collected and stored on a mass scale despite any suspicion or cause for surveillance. More worrying, as Snowden pointed out in a recent media interview, is the way the members of the “5-eyes” spy program bypass domestic laws through partnering with other members. While Australia cannot spy on its own citizens without legal process, Canada, New Zealand, UK or US can collect and share such data under this arrangement. As such, as domestic laws have often failed to protect the privacy of the public, it is important to look towards international human rights laws to protect the right to privacy.

International Human Rights Law

The United Nations General Assembly has recently adopted a resolution declaring the “right to privacy in a digital age.” In the resolution, the General Assembly reaffirmed the right to privacy found within the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Such laws seem clear that privacy is a fundamental human right, and that mass surveillance seems to breach this right. However, human rights are often about a balance of competing rights. While indeed some rights are absolute, such as the right not to be tortured, other rights can be limited or qualified in certain circumstances.

Indeed the wording of the law in the ICCPR refers to “arbitrary or unlawful interference”. Such words ask us to consider if the NSA spying is indeed unlawful or arbitrary.

Unlawful

The term unlawful, as the UN Human Rights Committee points out, means that no “interference can take place except in cases envisaged by the law.” As such, it is important to look to domestic cases to understand if these mass surveillances are unlawful.

In other countries, mass surveillance is also being challenged in domestic courts. A case in British courts by nearly a dozen civil liberties groups seeks to challenge the legality of programs run by MI5, MI6 and GCHQ. In Canada, the Communications Security Establishment Canada has admitted to illegally spying on Canadian citizens when attempting to spy on other citizens internationally.

However, while the debate regarding domestic legally continues, it is important to understand that even if such systemic spying is legal under domestic laws, any violations of privacy must still comply with the provisions, aims and objectives of the ICCPR. As Sarah Joseph and Melissa Castan point out in their book, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary:

Prohibition of “unlawful” interferences with privacy offers only limited human rights protections, as States Parties could potentially authorise highly oppressive invasions of privacy in municipal law so long as the laws were expressed with the requisite precision. Therefore, the prohibition is necessarily supplemented by the prohibition of arbitrary interferences with privacy.

Arbitrary

The second prohibition on surveillance is found in the term “arbitrary” interference. As the UN Human Rights Committee points out:

“arbitrary interference” can also extend to interference provided for under the law. The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.

Thus, as governments continue to argue the legality of their spying programs, it still may be a violation of international law, especially if such spying is arbitrary. The definition of “arbitrary” means that it “must be proportional to the end sought and be necessary in the circumstances of any given case”, as the decided in the famous case of Toonen v Australia.

Thus, in order to be proportionate and necessary, they have to serve a greater purpose than the rights they are breaching. In other words, if the public should accept that their privacy be invaded, they would need to be getting something much better in return, such as safety and protection.

Those in government argue that such an interference with the right to privacy is necessary for the protection of life, security and other harms like child pornography.

If these programs haven’t made the world safer, then perhaps there is a more ulterior motive behind these programs. Without any proof of the necessity of such programs to protect the public, it seems these programs are a mass violation of international human rights law.

Privacy and Free Speech

Looking again to the debate regarding free speech and racial discrimination, the right to privacy is also intrinsically connected to the right to free speech. Indeed, how can a society that is continually and systematically monitored feel free to speak openly? As Kenneth Roth, Executive Director of Human Rights Watch points out, “privacy and free expression are intimately linked”:

People are more likely to speak candidly if they can be assured of speaking privately. Whether it involves a client confiding in a lawyer, a patient talking to a doctor, a source speaking to a journalist, or an adherent of an unpopular cause addressing other supporters, robust speech suffers when privacy is imperilled.

The right to privacy is often understood as an essential requirement for the realization of the right to freedom of expression. Undue interference with individuals’ privacy can both directly and indirectly limit the free development and exchange of ideas … An infringement upon one right can be both the cause and consequence of an infringement upon the other.

Thus, mass surveillance may also be a breach of the right to freedom of expression under article 19 of the ICCPR.

Given the priorities of Tim Wilson, the new Human Rights Commissioner, to examine laws that impeach on the right to free speech, the systemic surveillance of the public should be a high priority.

Communications surveillance should be regarded as a highly intrusive act that potentially interferes with the rights to freedom of expression and privacy and threatens the foundations of a democratic society.

As our MPs continue to debate these programs in parliament, it is important to consider the human rights standards committed to by our governments. When our government admits to openly spying “for the benefit of our friends” and to “uphold our values” it is important to take a step back and assess if their actions are a violation of human rights law.

Hi there. I suffer from elecrtronic harassment and I think Article 12 applies to me. I have known I have been watched and listened to for over 22 years but I have been watched and listened to for much longer. I have been passed off as a shizoprenic but I am absolutely sure I am mentally astute. If you can give me some information on what route I can take to get rid of these remote spies this would most gratifying.

I do believe I should have ECHR legislation to back me up as a Black man. I think I have the human right to live feely and not live as if I am a rat in a cage.
I have a right to live life the way it should be and not worry about the fact that I could be murdered. Yes it is that serious.
It would be great stuff if you could help.